ex-ICFN, USN 

Current Discharge and Applicant’s Request

Application Received:  20081210
Characterization of Service Received:  
Narrative Reason for Discharge: 
Authority for Discharge:  MILPERSMAN 3630600

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19910404 - 19910711  	Active:	

Period of Service Under Review:
Date of Enlistment:  19910712	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19940729	Highest Rank/Rate:  IC3
Length of Service:   Year(s)     Month(s)   19 Day(s)
Education Level:  	AFQT:  86
Evaluation Marks:	Performance:  3.2 (3)	Behavior:  3.1 (3)	OTA:  3.33

Awards and Decorations (per DD 214):	  

NJP:  
- 19930211:	Article 86 (UA 2100, 19930123 - 0140, 19930124 (4 hours, 40 minutes)
	Awarded:    Suspended:    Suspension vacated 19930429

- 19930429:	Article 128 (Unlawfully strike IC3 with his fist)
	Awarded:    Suspended:  

- 19940708:	Article 86 (UA 19940626-19940627 (1 day)
	Article 92 (Dereliction of duty)
	Article 121 (Larceny - power con welding box)
	Awarded:   Suspended:  

SCM:     SPCM:     CC:     Retention Warning Counseling:  

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violations of the UCMJ, Articles 121 and 128.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1. Discharge inequitable because it was based on one isolated incident in 36 months of service without other adverse action.
2. Loss of his parent, inability to attend the funeral, and maltreatment on board the ship.
3. Post-service conduct.

Decision

Date:  20090312		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Discussion

:  ()  .  The Applicant contends his discharge was inequitable because it was based on one isolated incident in 36 months of service without other adverse incidents.  The Applicant also contends there was no misconduct on his part, he was denied leave to attend the funeral of his only parent, and attacked by his LPO (leading petty officer) whose actions he later discovered were racially motivated.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason or characterization of discharge if such a change is warranted.  A “General (Under Honorable Conditions)” discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  A discharge “Under Other Than Honorable Conditions” is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service.

The Applicant’s record of service was marred by three NJPs during this enlistment for violations of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence, 1 day), Article 92 (Dereliction of duty), Article 121 (Larceny, power con welding box) and Article 128 (Assault on a petty officer).  The record reflects there was sufficient evidence to substantiate a discharge due to misconduct.  Furthermore, the aforementioned evidence of misconduct refutes the Applicant’s contentions his discharge was due to an isolated incident and that he did not commit misconduct.  Additionally, there is no evidence in the record nor provided by the Applicant to support the allegations of misconduct or wrongdoing by his chain of command.

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discovered there was no impropriety or inequity in the characterization of the Applicant's service or the reason for discharge, at the time of discharge.  However, after consideration of the Applicant's post-service conduct, the Board determined relief is warranted based on equitable grounds.  The Applicant provided verifiable employment reference, academic transcripts from undergraduate school and licenses as a property and insurance agent in several states.  After a careful review of the Applicant's post-service documentation, in addition to his official service record and supporting documentation, the Board voted unanimously to upgrade the characterization of service to “General (Under Honorable Conditions)” as requested by the Applicant for equity reasons.  Therefore, relief is granted.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable at the time of discharge.  

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable Discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn:  Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC  20374-5023